England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT

		The Rolls Building
		27th April 2018

MR JUSTICE BUTCHER:

1. The Claimant brings this application for judicial review with the permission of Walker J. As stated in the Claim Form, the Claimant challenges two matters: one is his detention during the period of 6 October 2017 to 14 November 2014; the other is the Secretary of State's directions issued on 17 October 2017 for his removal from the United Kingdom.
2. Before considering the challenges which are made, it is necessary to give a summary of the factual and procedural background. The Claimant is a citizen of Ghana and was born on 30 March 1985. He arrived in the United Kingdom on 11 October 2011 with an entry clearance as a visitor, valid until 8 February 2012. He did not, however, leave the United Kingdom at that point. The Claimant made an application for a European Economic Area (EEA) residence card on 23 January 2015 as spouse of a Dutch national, Ms Agatha Yeboa. The Claimant claimed to have married Ms Yeboa by proxy on 21 November 2014. The Secretary of State refused that application with a right of appeal to the First-tier Tribunal on 9 June 2015. The Claimant lodged an appeal against that decision on 16 June 2015. The First-tier Tribunal heard that appeal on 29 March 2016. Both the Claimant and Ms Yeboa gave evidence.
3. The First-tier Tribunal proceeded to dismiss the appeal in a determination promulgated on 11 May 2016. The First-tier Tribunal came to its conclusion on two grounds: first that the marriage by proxy was not valid; secondly, and in any event, it found that the Claimant had no durable relationship with Ms Yeboa. The First-tier Tribunal refused permission to appeal to the Upper Tribunal on 29 June 2016. It was said that the proposed appeal had no merit in relation to either of the grounds I have identified above. The Upper Tribunal refused permission to appeal on 8 November 2016. Once again, it was said that the proposed appeal had no merit on either of those two points.
4. The Claimant continued to reside in the United Kingdom, notwithstanding the decision of the First-tier Tribunal. The Claimant was issued an RED 0001 notice as an overstayer on 10 February 2017. He then made another application for an EEA residence card on 13 March 2017, relying again on his alleged relationship with Ms Yeboa. The Secretary of State refused that application with a right of appeal to the First-tier Tribunal on 27 July 2017. In refusing that application, the Home Secretary stated that, from home visits and the lack of officially-sourced documentation, she had sufficient evidence to believe that the proxy marriage was one of convenience for the sole purpose of the Claimant's remaining in the United Kingdom. One of the matters referred to was that on 6 July 2016 officers had undertaken a visit to the Claimant's address. Ms Yeboa had answered the door and, asked to speak to the Claimant, she had said she did not know him and that he did not live there. For the purposes of this decision, no reliance was placed on the invalidity of the marriage of 23 November 2014. The Claimant lodged an appeal against the Secretary of State's decision on 7 August 2017. The appeal is pending, and a hearing is listed for 14 June 2018.
5. The Claimant was issued with an RED 0004 notice on 27 September 2017, providing a 3-months' window in which his removal could be enforced without further order. The Claimant was detained on 6 October 2017 when he attended Eaton House to report, and removal directions were set for 7 October 2017. On the same day he made a human rights claim. On 7 October 2017, the Claimant's solicitors sought to make an out-of-hours application restraining removal, but were informed that removal directions had already been deferred. On 16 October 2017, the Secretary of State refused the human rights claim and certified it as clearly unfounded under s.94 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act").
6. On 17 October 2017, the Secretary of State issued directions for the Claimant's removal to Ghana on 26 October 2017. The Claimant then issued this application for judicial review with an application for urgent consideration and interim relief on 20 October 2017. On the same day, Lang J made an order to stay his removal from the United Kingdom pending the resolution of this judicial review claim. On 14 November 2017, the Claimant was released on bail from his detention. Walker J considered the matter on the papers and granted permission to apply for judicial review on 1 December 2017.
7. I have already stated the two matters which the Claimant challenges in his Claim Form, namely: firstly, his immigration detention; and secondly, the Secretary of State's directions for his removal. The Claimant's grounds for judicial review identified two points, which were as follows. First it was said that the Claimant's detention was unlawful because the Secretary of State had no lawful authority to detain him. The argument was that the consideration of detention had to be pursuant to Directive 2004/38 EC ("the Directive") and the Immigration EEA Regulations 2016 ("the 2016 Regulations") and that the Secretary of State had no power to detain the Claimant under Regulation 32 of the 2016 Regulations because she had no reasonable grounds for suspecting that he was someone who could be removed under Regulation 23(6)(a) as having no right to reside in the United Kingdom. Secondly, it was argued that removal would be in breach of EU law in that while there is a pending appeal, which is described in the grounds as an "in-country appeal", the Secretary of State does not have the power to remove him until that pending appeal is determined.
8. Before I turn to consider these points, I should mention that at the outset of the hearing Ms Anifowoshe for the Claimant suggested that there might be two other issues which should be considered, namely whether the Claimant's marriage is or is not a sham, and that the Secretary of State had wrongly certified his human rights claim as clearly unfounded. Mr Malik for the Secretary of State objected that these two points have not been raised in the grounds. The first, he said, was not a matter which could be for this court because it was the subject of the appeal to the First-tier Tribunal; the second was one which the Secretary of State had not dealt with because it had not been raised. Faced with these objections, Ms Anifowoshe realistically conceded that these two points were not ones which she could pursue.
9. I therefore turn to the two points which are in issue. In my judgment, it is necessary to consider them in the reverse order to that in which the Claimant puts them in his grounds, in that the decision in relation to the second may be germane to the lawfulness or otherwise of the detention.
10. So I turn to that ground. As I have said, the Claimant's contention here is that he may not be removed from the United Kingdom pending the resolution of his statutory appeal or, to put it another way, and in language which is found in the authorities, that the appeal is suspensive. This argument has been raised and rejected on previous occasions. In R (Bilal Ahmed) v Secretary of State for the Home Department [2015] UKUT 436 (IAC) the Upper Tribunal considered whether the institution of an appeal, or the availability of a right to institute an appeal, against the Secretary of State's refusal of a residence card had suspensive effect in the sense of barring removal of the appellant pending the outcome of the appeal. The Upper Tribunal answered that question in the negative and gave the following guidance:

"(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.

(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.

(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P's application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience."

11. The appeal from that decision to the Court of Appeal was dismissed. In the course of his judgment in that appeal ([2016] EWCA Civ 303), Laws LJ (with whom Beatson LJ and King LJ agreed) said this:

"13. Accordingly there is in my judgment nothing in these statutory provisions to give the appellant's appeal against the refusal of a residence card suspensive effect so as to prevent his removal from the United Kingdom while the appeal is pending. On the contrary, the conferment of suspensive effect on appeals relating to EEA decisions listed at Regulation 2(1)(a) and (c) but not (b) raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against refusal of a residence card any suspensive effect whatever."

12. The Court of Appeal also rejected an argument that the Directive requires the Secretary of State not to remove a person from the United Kingdom pending the resolution of an appeal from the refusal of his residence card application. Laws LJ concluded this part of his reasoning by saying in para.21 of his judgment:

"21. Accordingly in my judgment the Directive does not assist the appellant. His appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card."

13. The decision in R (Bilal Ahmed) involved the Immigration European Economic Area Regulations 2006. They have been superseded by the 2016 Regulations. These have themselves been the subject of consideration in the decision of Mr Michael Fordham QC, sitting as a Deputy High Court Judge, in R (Shote) v Secretary of State for the Home Department [2018] EWHC 87 (Admin). The argument deployed in that case, namely that an appeal against the Secretary of State's refusal of a residence card was a suspensive in-county appeal, was essentially the same as the argument addressed to me in this case. It was dealt with by Mr Fordham QC as follows:

"14. The first reason relied on by the Claimant is that the appeal against the refusal of an EEA residence card, filed on 8 March 2017, was in law a suspensive in-country appeal, which barred removal action. If removal action was barred, Hardial Singh 3 was breached by the detention.

15. I cannot accept the Claimant's argument. Regulation 36 of the 2016 EEA Regulations provides for the relevant appeal rights. Regulation 37 identifies which appeals can only be pursued out of country, and does not include an appeal against an EEA decision to refuse a residence permit. Regulation 40(2) and (3) identify the situations in which directions for removal are to have no effect while an appeal is pending. Regulation 33(1)(a) and (2) identifies a further situation in which an extant appeal restricts the giving of removal directions, absent certification.

16. These are express, carefully designed protections and the Claimant cannot demonstrate that she falls within them. The fact that she is not required to appeal only from abroad (Regulation 37) does not mean she is entitled, on having commenced an appeal, not to be removed. That would be to 'conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion', which was the 'basic flaw' identified in R (Ahmed) v SSHD [2015] UKUT 436 (IAC) at 26, in a passage endorsed by the Court of Appeal [2016] EWCA Civ 303 [2016] Imm AR 869 at [10].

17. Regulation 2 defines 'EEA decision' as including 'a decision under these Regulations that concerns … (b) a person's entitlement to be issued with … a residence card'. That covers this case, but is not a species of EEA decision covered by Regulation 40(2) or (3). Regulation 36(10) and Schedule 2 mean that certain provisions of the Nationality Immigration and Asylum Act 2002 have effect [subject] to EEA appeal rights; but those provisions do not include section 78 of the 2002 Act (which prohibits removal from the United Kingdom in certain situations).

18. As Laws LJ (for the Court of Appeal) explained in Ahmed (see [2016] EWCA Civ 303 at [13]) – a case which concerned the previous 2006 EEA Regulations (the Immigration (European Economic Area) Regulations 2006) – the 'plain inference [is] that it was the specific intention of the subordinate legislator to deny … suspensive effect' to an appeal against refusal of an EEA residence card. The Claimant in the present case was unable, in my judgment, to point to any material distinction between the 2006 and the 2016 EEA Regulations, nor was I shown any conflicting binding authority or overriding and inadequately-domesticated EU right."

14. I agree with the reasoning and conclusions of Mr Fordham QC on this point. In particular, I agree with him that there is no material distinction between the 2006 Regulations considered in R (Bilal Ahmed) v Secretary of State for the Home Department, and the 2016 Regulations; and, accordingly, that the decision in Bilal Ahmed is germane to a consideration of the issues in this one. Accordingly, on a correct analysis of the 2016 Regulations and in accordance with the decisions to which I have referred, the fact of the existence of an appeal against the decision to refuse a residence card is not suspensive and does not prevent the removal of the Claimant from the United Kingdom.
15. A further point was, however, addressed in argument. This was a contention that the decision of the Supreme Court in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 was relevant and indicated that, given potential difficulties to the Claimant in presenting his appeal to the First-tier Tribunal if removed, the existence of the appeal did, in effect, constitute a 'barrier' to his removal. In this context, it is pertinent to note that possible difficulties in presenting the appeal were not raised by the Claimant in the Claim Form or in the grounds as being matters which rendered the removal decision and directions unlawful. Equally, the Claimant has adduced no evidence as to whether there would be any difficulties and, if so, what they might be. The highest Ms Anifowoshe could put it, while recognising that it was unevidenced, was that there were possible difficulties in relation to instructing new lawyers and in obtaining and presenting evidence.
16. I do not consider the decision in R (Kiarie and Byndloss) to be of direct relevance. That was a case in which the appellants had arguable Art.8 human rights claims which had not been certified under s.94 of the 2002 Act. It was held that their proposed deportation gave rise to a potential breach of their Art.8 rights, that they were entitled as an aspect of Art.8 itself to an effective procedure for appealing against that threatened breach, and that an out-of-country appeal had not been shown to allow an effective challenge to the deportation decision in those cases. On that basis, the certificates under s.94B were quashed.
17. Those circumstances are clearly different from the present, where there has been a certification under s.94 of the 2002 Act that the Claimant's Art.8 claim was clearly unfounded. Furthermore, there has been no challenge to that certification. There is no question here, therefore, of the Claimant having procedural rights as an aspect of Art.8. Nor is the present a case in which the subject of the Claimant's appeal is a precedent fact to the Secretary of State's power to remove under s.10 of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014. In that regard, I refer to the decision in R (Shote) at para.23, where Mr Fordham QC said the following:

"The correct analysis, in my judgment, is as follows. A person who claims eligibility under the 2016 EEA Regulations, and whose claim has been rejected by the Secretary of State but is appealable, is a person who 'requires' and 'does not have' leave to enter or remain for the purposes of the section 10(1) removal power. Eligibility under the 2016 EEA Regulations is not a precedent fact for the purposes of judicial review of the section 10 removal power, nor for the purposes of judicial review of immigration detention."

That is consistent with para.27 of Laws LJ's judgment in R (Bilal Ahmed). In these circumstances, I cannot see how potential difficulties in relation to the presentation of the appeal give rise to a public law challenge to the removal decision or directions.

18. In any event, as I have said, there is no evidence at all as to difficulties which the Claimant may face in conducting the appeal from Ghana. What is said is that it is possible there may be such difficulties. I do not consider that that can amount to a sufficient basis for reviewing the Secretary of State's decision, quite apart from the point that I have already made. If it were, then it would be a ground for challenge to removal pending the appeal in very many cases, and this would undermine the intention of the subordinate legislator which, as has been found, was to deny suspensive effect to an appeal against refusal of an EEA residence card: see R (Shote) para.18 referring to the Court of Appeal decision in R (Bilal Ahmed) at para.13. On this basis, the challenge to the decision to remove, and removal directions, fails.
19. I therefore turn to the challenge to detention. The primary power to detain is provided for by para.16(2) of sch.2 to the Immigration Act 1971. It provides that:

"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions."

20. Section 10(1) of the Immigration and Asylum Act 1999 confers the power to remove any person, "if the person requires leave to enter or remain in the United Kingdom but does not have it". By s.10(7) of the 1999 Act, the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paras.8 to 10 of Schedule 2 to the 1971 Act. By s.10(9) of the 1999 Act, para.16(2) of sch.2 to the 1971 Act applies in relation to directions for such removals and "the persons subject to those directions".
21. The only basis on which it said that the Claimant did not need leave to remain is his alleged eligibility under the 2016 Regulations. However, a person whose claimed eligibility under the EEA Regulations has been rejected is a person who requires leave to remain in the United Kingdom but does not have it: see R (Shote) at paras 22-23. That applies to the Claimant in this case on the basis, as I have found, that the appeal did not have a suspensive effect. He was thus clearly a person whom the Secretary of State had reasonable grounds for suspecting was someone in respect of whom removal directions might be given. Accordingly, the Claimant's contention that the Secretary of State had no lawful authority to detain the Claimant is, in my judgment, wrong.
22. I should add that in so far as the Claimant contended that he should be treated as a family member of an EEA national until his appeal was resolved, I consider that this was no answer to the above analysis or that in R (Shote). Furthermore, in the present case, there has already been a judicial determination by the First-tier Tribunal on 11 May 2016 that there was no durable relationship with Ms Yeboa. In those circumstances, it is particularly difficult to see why the Claimant must be regarded as a family member until his second appeal to the First-tier Tribunal is determined.
23. No challenge was made to the detention on Hardial Singh grounds. I need say no more about this, therefore, save that I was not surprised that no such challenge had been made.
24. On this basis, the challenge to the detention also fails, and the Claimant's application for judicial review is accordingly dismissed.

MR MALIK: My Lord, I am very grateful for this judgment. I have an application for costs. There is, in my submission, no reason to depart from the general principle in this case. There is a costs schedule, my Lord, and I would respectfully invite my Lord to assess the costs in the sum claimed: that is £10,860.

MR JUSTICE BUTCHER: I will just have to find that. MR MALIK: My Lord, I have a spare copy if that assists. MR JUSTICE BUTCHER: That would assist.

Yes, Ms Anifowoshe.

MS ANIFOWOSHE: I witnessed the costs just before you walked in, my Lord. My learned friend did say that it was served on those instructing me a couple of days ago. I have no instructions on the costs schedule, but I will point out on the schedule from one of the documents item number 21: the copying and collating of the trial bundle times six. As my

Lord would know, those instructing me did actually file and serve bundles on both the court and those instructing my learned friend, last Wednesday 18. And they provided evidence of delivery of those trial bundles. I do accept that the trial bundles did not include an authorities bundle----

MR JUSTICE BUTCHER: Which was useful anyway.

MS ANIFOWOSHE: Which was useful. But in any case both parties were not in communication because had, on receipt of the bundle by my learned friend's instructing solicitors, had there been a communication between both parties, I am sure they would have come to an agreement as to the trial bundle. I don't see why, in my respectful submission, the Claimant should have to incur the costs of trial bundles that his solicitors had already prepared in anticipation of this hearing.

MR JUSTICE BUTCHER: Yes.

MS ANIFOWOSHE: That is the only.

MR JUSTICE BUTCHER: But there is no argument about the principle? MS ANIFOWOSHE: No.

MR JUSTICE BUTCHER: No. So there should be an order for costs, and you have made your point, which you can see from the schedule.

MS ANIFOWOSHE: Yes, my Lord. The only other argument I would make is that this Claimant is not working, has no source of income, and would find it actually a bit difficult to payments in the sum that is being sought after by the respondent in this case. That is the only argument I will make, that point, but besides that, on principle I have no objections.

MR JUSTICE BUTCHER: No.

MR MALIK: My Lord, when Mr Justice Walker granted permission, he ordered the Claimant compile the trial bundle no less than four weeks before the hearing. A bundle, my learned friend says, was filed only last week, which did not reach my instructing solicitor. In the circumstances, it was plainly reasonable for my instructing solicitor to produce the trial bundle which was used yesterday which in fact includes the authorities bundle and further documents that would not, in any event, be in the bundle that my learned friend says was filed.

So far as the other point that my learned friend has made as concern, you do not have any evidence before you as to the Claimant's means. The Claimant was able to raise funds to instruct his legal team to pursue this judicial review claim. My learned friend told us yesterday, my Lord, that she is not acting pro bono on this case, and in the circumstances there is no reason why the Claimant would not pay the costs in the sum claimed.

MR JUSTICE BUTCHER: No. There should be an order for costs. I think that there has been a certain amount of duplication in relation to the trial bundle, although the bundle which was submitted was useful because it contained the authorities. But it duplicated material which at least the court had had before, and which a certain amount of further correspondence might have avoided. In those circumstances I am going to reduce the amount for copying and collating the trial bundle by £500. Otherwise, I will make an order for the costs in that amount.

MR MALIK: My Lord.

MR JUSTICE BUTCHER: Is there anything else which arises?

MR MALIK: No, my Lord. So the order that you are making is in the sum of £10,360, which is £500 less than the amount that was claimed.

MR JUSTICE BUTCHER: Right.